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Legal Intern, Manhattan Institute's Center for Legal Policy
Ever so often, the Supreme Court hears a case that has ramifications for our very constitutional structure.These cases reach into the heart of our government to see what strictures remain between the founding generation and our own.
The Court is currently hearing oral arguments in Bond v. United States, a case dealing with fundamental issues of federalism and separation of powers. Specifically, the issue deals with the extent to which Congress can abrogate state police powers pursuant to the mandates of Congress's treaty obligations.
But in a larger sense, this case speaks to the validity of the framework of analysis the Court has employed since its inception. The presumption of constitutional analysis has always begun on the side of federalism and separation of powers; that is, the Constitution created certain enumerated powers to delegate to the federal government and left the majority to the states, so we begin our analysis from where the nexus of the power was meant to lie. In other words, our underlying premise is always to begin with federalism, and inch towards increasing federal power as circumstances might necessitate.
The Bond court has a chance to take another step towards maintaining the presumption of our Constitution by reaffirming the states' role in criminal prosecutions.
The Wall Street Journal has further details on the salient issues here, and the New York Times has more on the oral arguments here.
After oral arguments before the Supreme Court of the United States on February, 28 and our featured discussion analyzing those arguments, it was reported that the Court, in the Kiobel v. Royal Dutch Petroleum case, issued an order directing the lawyers to reargue the case in the next term with an expanded argument on the scope of the Alien Tort Statute which gives aliens a right to sue in U.S. courts.
The justices seek to examine a question broader than whether corporations can be held liable for allegedly facilitating human-rights abuses in foreign nations in violation of international law norms. Instead the Court wants to tackle the extraterritoriality issue head on in order to decide whether and under what circumstances the 223-year-old Alien Tort Statute allows U.S. courts to "recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." In addition, it seems that the Court may also address whether a "party being sued can be challenged not for directly engaging in human rights abuses, but for 'aiding and abetting' someone else who did so."
To gain a better understanding of the Court's action, we invited Penny Venetis (amicus brief), clinical professor of law and co-director of the Constitutional Litigation Clinic at Rutgers School of Law in Newark, and Andrew Grossman (amicus brief), visiting legal fellow in The Heritage Foundation's Center for Legal and Judicial Studies and litigator at Baker & Hostetler, to discuss the recent order in the Kiobel case.
Grossman, in the podcast, comprehensively reviewed what led to the Court's order:
I think the theme, the mood of the Court at oral argument, was probably best summed up by a statement that Justice Kennedy made before the first advocate [arguing] before the Court even got out his second sentence which was that, expressing great wariness, "the ATS authorizes federal courts to exercise civil jurisdiction over alleged human rights abuses over which the nation has no connection." I think that Justice Alito put it even more clearly when he asked, "What business does a case like this have in the courts of the United States?"
...I think the court realized in considering this case, especially due to something that happened immediately after oral argument, that deciding the case on corporate liability wasn't going to get them where they wanted to go which was eliminating categorically this type of litigation.
In a separate podcast, Professor Venetis had this to say about the Court's order when asked about Justice Alito's questioning:
...I think that Justice Alito was trying to wrap his head around the notion of extraterritoriality which we've been talking about and that's why the court wants to hear additional arguments, but I don't necessarily think it is a bad thing. It certainly is unusual for the court, but I don't necessarily think it is a bad thing. I think there are a number of Alien Tort Statute cases [making] their way through the system, and they're all making their way one-by-one up to the U.S. Supreme Court. And to me, it seems that the Court really wants to take care of these unanswered questions once in for all. That it is going to consider these open questions that it never spoke about in Sosa or in any other case. It [the Court] really wants to address it all at once rather than by piecemeal every few years. I think that that's certainly one way to interpret the Court's actions. The other is that it truly is concerned about this issue of extraterritoriality.
On Tuesday February 28, the Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum, a case testing the extent to which U.S. law enables litigation in American courts against multinational corporations for allegedly facilitating human-rights abuses in foreign nations in violation of international law norms.
In Kiobel, Nigerian nationals are attempting to invoke the Alien Tort Statute to sue oil companies that the plaintiffs allege worked with the Nigerian military to suppress local opposition to oil exploration. A divided panel of the Second Circuit rejected the Kiobel claim by reasoning that corporate liability was not customary international law, such that the claim lay outside the Alien Tort Statute's jurisdiction.
To discuss these issues, we were lucky to have two distinguished international law professors who each signed amicus briefs in the case, on either side. Julian Ku of Hofstra Law School signed a brief for professors of international law, foreign relations law and federal jurisdiction (PDF) that argued both that the original meaning of the Alien Tort Statute was far narrower than its current application and that the Kiobel suit was unwarranted based on Supreme Court precedent. David Weissbrodt, the Regents Professor and Fredrikson & Byron Professor of Law at the University of Minnesota Law School, signed a brief for international law scholars (PDF) that argued, conversely, that the suit was a legitimate application of international law through the Alien Tort Statute, and that the Second Circuit had misconstrued the international law in this case.
Professor Julian Ku of Hofstra Law School and Professor David Weissbrodt, the Regents Professor and Fredrikson & Byron Professor of Law at the University of Minnesota Law School, discuss the extent to which companies can be sued by foreigners in U.S. courts for alleged human rights abuses abroad, at issue in the Kiobel v. Royal Dutch Petroleum case currently before the Supreme Court with oral arguments scheduled to be heard tomorrow. This installment of Point of Law's monthly featured discussions was deliberately scheduled to generate quick-time analysis and reaction to the Kiobel case shortly after it is argued in the courtroom.
Professor Ku's opening comment neatly summarized the major arguments on both sides of the central issue in Kiobel. Professor Ku then discussed the "unattractive" argument against corporate liability, yet concluded that this argument, while unattractive and unpopular, is persuasive and probably correct, citing the strong presumption that "international law doesn't impose duties directly on corporate entities after all." The featured discussion promises to be lively and thoughtful; please check back throughout the week as the discussion continues.
Last year, a divided Second Circuit decided Kiobel v. Royal Dutch Petroleum, which ended three decades of abusive application of the Alien Tort Statute—an eighteenth-century federal law—against innocent-bystander corporate defendants through application of amorphous concepts of international law. The losing plaintiffs have submitted a certiorari petition noting the circuit split with the Eleventh Circuit. [SCOTUSblog via Bashman; Jackson]
President Obama declared his support for the non-binding UN resolution, which declares "indigenous peoples have a right to lands and resources they traditionally occupied or otherwise used." As I tell WND (in a story with an unrealistically scary headline), one can expect tribes to use such a resolution in an attempt to relitigate long-resolved land disputes. Walter Olson's excellent forthcoming book, Schools for Misrule has a chapter on such litigation.
The American Lawyer has posted six excerpts from the outtakes of lawyer Steven Donziger in the "documentary" Crude that Chevron claims demonstrates an attempt to corrupt the Ecuadorian justice process.
Yesterday morning, at a conference co-sponsored by the Manhattan Institute, the Institute for Legal Reform at the U.S. Chamber of Commerce released a new paper entitled "Think Globally, Sue Locally: Out-of-Court Tactics Employed by Plaintiffs, Their Lawyers, and Their Advocates in Transnational Tort Cases" (PDF). In cases involving the 1789 Alien Tort Statute as well as other litigation -- including U.S. litigation to enforce dubious, fraudulently obtained foreign verdicts -- plaintiffs' lawyers are increasingly trying to use American courts to recover for alleged conduct that happened overseas. As the report documents, such litigation is typically accompanied by out-of-court media, community organizing, investor-relations, and political tactics.
The study author, Jonathan Drimmer, wrote this piece in The Wall Street Journal discussing his findings.
More whetting of transnational-law appetites, via Mother Jones: "According to a forthcoming United Nations study, the world's 3,000 biggest public companies could be on the hook for $2.2 trillion--more than 30 percent of their profits--if they were made to pay for the fallout of their carbon emissions."